Delhi High Court
Narender Kapoor vs D.D.A. on 18 July, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th July, 2011
+ W.P.(C) No.8790/2008
% NARENDER KAPOOR ..... Petitioner
Through: Mr. Sumit Bansal and Mr. Ateev Mathur,
Advs.
versus
D.D.A. ..... Respondent
Through: Mr. Sayid Marsook and Mr. Nikhil Goel,
Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner had submitted a tender for an office on ground floor
admeasuring 66.60 sq. mtrs in pursuance to the bids invited by the
respondent DDA for allotment of built up shop/office/kiosk on freehold
basis in Convenient Shopping Centre, Jhilmil Colony, Ph-II, LIG Houses.
The terms and conditions of the tender inter alia required the bidders to
deposit 25% of the bid amount alongwith the tender and the position with
respect to the payment of the balance amount was as under:
"8. The demand cum allotment letter would be sent to the
successful tenderer immediately after the tender is
accepted by the competent authority i.e., within two weeks
of the display of result on the notice board. The highest
tenderer shall make payment of balance 75% of the
amount demanded vide demand cum allotment letter
referred to above within 30 days from the date of issue of
demand letter by Bank Draft/Pay Order payable only at
Vikas Sadan, INA, New Delhi branches of Central Bank of
India/State Bank of India. The Competent Authority may,
in his absolute discretion, extend the last date of payment
upto a maximum period of 180 days beyond the last date
for payment with reference to the date of issue of demand
letter subject to payment of interest on the balance amont.
The interest shall be chargeable @ 15% Compounded and
compounding shall be done on the last day of the
accounting year of the DDA.
10. In case the highest tenderer fails to pay balance 75% of
amount of the tender amount within 30 days from the date
of issue of demand letter or within such extended period if
any granted by Competent authority on his written
application, the tenders shall stand cancelled and the
earnest money forfeited. In that eventuality the Competent
Authority shall be competent to re-tender the shop."
2. The counsel for the petitioner has stated that the reserve price for the
space aforesaid was Rs.33,30,000/- and the bid of the petitioner for
Rs.47,06,000/- was, on 28th March, 2008, declared to be the highest.
3. The case of the petitioner is that however no demand cum allotment
letter was received by the petitioner and the petitioner for the first time
received a letter dated 6th October, 2008 asking him to, within 15 days from
the date of issue of the letter, submit the 3rd copy of the bank challan of
payment if already made by him in accordance with the demand letter dated
26th May, 2008 failing which the allotment would be cancelled without
further notice. The petitioner's case is that the demand cum allotment letter
dated 26th May, 2008 aforesaid was never received by him. The petitioner
claims that he went to the office of the respondent on 16 th October, 2008 and
sought a revised demand cum allotment letter granting him time of 30 days
to make the payment to enable the petitioner to avail of loan / financial
assistance for making the payment. Contending that the said request was not
accepted, the present petition was filed seeking mandamus to the respondent
DDA to issue fresh demand cum allotment letter to the petitioner. Notice of
the petition was issued and vide order dated 13 th April, 2009 which
continues to remain in force, status quo was directed to be maintained with
respect to the space aforesaid, in case the tender in respect of the same had
not been finalized.
4. Counter affidavit has been filed by the respondent to which rejoinder
has been filed by the petitioner. The respondent in its counter affidavit has
inter alia stated that upon the petitioner approaching the DDA in public
hearing on 27th October, 2008 and representing that the demand letter has
not been received by him, he was asked to deposit the demanded amount by
23rd December, 2008 which date was within the permissible extendable limit
of 180 days (from the letter dated 26th May, 2008) but the petitioner failed to
deposit the said amount and thus the bid stood cancelled.
5. The petitioner in the rejoinder has contended that without a valid
demand letter, he could not have been called upon to pay the balance
amount.
6. It is also on record that though the demand cum allotment letter as per
the records of the DDA was dispatched by speed post but neither the proof
of delivery nor the return envelop is available on the file of the respondent
DDA.
7. The facts aforesaid would show that the petitioner at the time of
making the bid was aware that the demand cum allotment letter was to be
issued within two weeks of the declaration of the highest bidder and which
admittedly happened on 28 th March, 2008. There is nothing to show that the
petitioner at any time within two weeks approached the DDA to inquire
about the demand cum allotment letter. The petitioner chose to remain quiet
till October, 2008. Even after becoming aware of the demand cum allotment
letter having been issued, the petitioner did not choose to deposit the
amounts for which admittedly an opportunity was given. The reason given
now before this Court that the petitioner needed the demand cum allotment
letter to avail of the loan from the Bank does not find mention in the letter
delivered by the petitioner to the respondent DDA on 6 th October, 2008 (at
page 16 of the paper book). The relief claimed in this petition also is for
issuance of the demand cum allotment letter only and which is found to be
of a dilatory nature. The petitioner even while approaching this Court did not
offer to make the payment or to deposit the amount and continued to seek
the demand cum allotment letter.
8. The terms and conditions of allotment and on the basis whereof others
would have bid and/or would have decided not to bid, required the
successful bidder to be ready with the entire payment, maximum within 45
days of the date for opening of the bids. There is nothing to show that the
petitioner made any effort to make the payment within the prescribed time.
The action of the respondent DDA impugned in this petition are found to be
in accordance with the terms of the tender.
9. This Court had on the last date of hearing asked the counsel for the
respondent DDA to obtain instruction whether the amount with reasonable
interest can now be received. The counsel for the respondent states that
there is no such policy.
10. Even otherwise the Division Bench in the judgment/order dated 2nd
September, 1993 in CWP No. 2395/1990 titled Kailash Nath & Associates
v. UOI and the Apex Court in Meerut Development Authority v.
Association of Management Studies (2009) 6 SCC 171 have held that the
exercise of writ jurisdiction in such contractual matters is not appropriate.
As aforesaid, no case of arbitrariness in the action of the respondent DDA is
made out.
11. As far as the argument of non receipt of the demand letter is
concerned, the same raises a factual dispute which cannot be adjudicated in
this jurisdiction.
12. No merit is thus found in the petition. The same is dismissed. No
order as to costs.
RAJIV SAHAI ENDLAW, J
JULY 18, 2011
M
